In the

United States Court of Appeals

For the Seventh Circuit

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No. 03-3638

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ANDRE WELCH,

Defendant-Appellant.

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Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 02 CR 818—Blanche M. Manning, Judge.

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SUBMITTED OCTOBER 25, 2005—DECIDED NOVEMBER 21, 2005

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Before FLAUM, Chief Judge, and MANION and ROVNER,

Circuit Judges.

FLAUM, Chief Judge. Defendant-appellant Andre Welch

was convicted by a jury of bank robbery in violation of 18

U.S.C. § 2113. The district court sentenced Welch to 160

months in prison. When imposing the original sentence, the

district court considered the seriousness of Welch’s past

criminal conduct and granted the government’s motion for

an upward departure under section 4A1.3 of the sentencing
2 No. 03-3638

guidelines. U.S.S.G. § 4A1.3. This upward departure

increased the defendant’s criminal history category from a

IV to a VI based upon the district court’s finding, by a

preponderance of the evidence, that the defendant had

committed four other bank robberies. The district court also

increased the defendant’s Guideline range from a 27 to a 28

to reflect his criminal history. The district court imposed

this increase because it found 20 criminal history points,

which exceeded the bounds of criminal history category VI.

In addition, the district court imposed a two-level enhancement for obstruction of justice. U.S.S.G. § 3C1.1. This

enhancement was imposed because Welch submitted false

documentation in which he claimed to have been honorably

discharged from the military when in fact he had been

given an involuntary discharge for drug abuse and failing

to comply with a drug rehabilitation program. In all,

Welch’s guideline range was increased from an original

range of 84-105 months to a new range of 140-175 months.

On March 24, 2005, this Court ordered a limited remand

to the district court pursuant to United States v. Paladino,

401 F.3d 471 (7th Cir. 2005), to determine whether that

court would have imposed the same sentence had it understood that the Guidelines were advisory. After considering

the briefs of both parties as well as the factors in 18 U.S.C.

§ 3553(a), the district court indicated that it would have

imposed the same sentence under an advisory guidelines

regime. 

Defendant Welch argues that the district court’s reimposition of the original sentence would be unreasonable because: (1) the district court committed error by enhancing

Welch’s sentence based on facts not supported by the

judicial record, in violation of Shepard v. United States, 125

S.Ct. 1254 (2005); and (2) the district court did not use a

“beyond a reasonable doubt” standard in making factual

findings at sentencing.

In Shepard v. United States, the Supreme Court found
No. 03-3638 3

1 Under ACCA a higher sentence is allowable for previous

convictions that include a drug offense or violent felony. The

ACCA states that burglary is a violent felony if committed in a

building or enclosed space, but burglary is not a violent felony if

committed on a boat or in a motor vehicle. The district court

inappropriately used police reports to determine the nature of the

defendant’s past burglary conviction. A court determining the

nature of a burglary conviction is limited to examining statutory

language, charging documents, transcripts of plea colloquies, plea

agreements, and factual findings by the trial court to which the

defendant assented.

that a sentencing court may not look to police reports and

other documents to determine whether a particular prior

conviction would increase a defendant’s sentence under the

Armed Career Criminal Act (“ACCA”). 125 S.Ct. 1254

(2005).1

 This decision is inapplicable to the instant case.

The district court acted properly by considering evidence of

the defendant’s prior crimes.

In the district court’s September 22, 2003 memorandum

and order, the court found:

After reviewing all of the evidence, this Court finds that

the Government has put forth sufficient “reliable”

evidence to show by a preponderance of the evidence

that Welch committed the three bank robberies at Tech

Federal on February 7, March 25[,] and May 20, 1997,

and the robbery of the Bank of Homewood on July 8,

1997. While no one piece of evidence clearly implicates

Welch, the totality of the evidence meets the preponderance of the evidence standard. Of particular importance

to this Court is the black jacket found at his residence,

the yellow hard hat, the statement to Austin, and the

bank surveillance photos. Moreover, even discrediting

the identification by Judith Welch and the teller, this

Court finds that their identification of Welch is sound.

After closely observing Welch at the trial and the

sentencing hearing and closely comparing him to the
4 No. 03-3638

bank surveillance tapes, this Court firmly believes that

Welch is the robber in those photographs.

The evidence referred to by the district court at sentencing was not of the type excluded under Shepard. Rather, the

evidence referred to was presented by the prosecution

during the course of the trial and the sentencing hearing.

Furthermore, unlike Shepard, where a finding by the

district court had the potential to increase a defendant’s

sentence from a 37-month maximum to a 15-year minimum

under the ACCA, the district court’s determination in the

instant case that Welch had committed prior crimes did not

alter the statutory minimum or maximum. See 18 U.S.C. §

2113. 

Welch also claims that the district court failed to use the

proper standard of proof in evaluating the sentence enhancement. In the context of a sentencing enhancement, a

district court may consider evidence of a prior crime

without proof beyond a reasonable doubt. McReynolds v.

United States, 397 F.3d 479, 481 (7th Cir. 2005)

(“[D]ecisions about sentencing factors will continue to be

made by judges, on the preponderance of the evidence, an

approach that comports with the sixth amendment so long

as the guideline system has some flexibility in application.”).

The district court’s explanation of its original sentence

and its decision not to alter that sentence on remand was

sufficient. The district court’s sentence is within the

Guidelines range, and the district court was not obligated

to provide this Court with a detailed explanation of its

consideration of each of the relevant factors. See United

States v. Dean, 414 F.3d 725, 729-30 (7th Cir. 2005) (sentencing judge’s “duty ‘to consider’ the statutory factors is

not a duty to make findings”); United States v. George, 403

F.3d 470, 472-73 (7th Cir. 2005) (“[J]udges need not rehearse on the record all of the considerations that [18

U.S.C. § 3553(a)] lists, as it is enough to calculate the range
No. 03-3638 5

accurately and explain why (if the sentence lies outside it)

defendant deserves more or less.”). 

Under the post-Booker sentencing regime, this Court

must ensure that the district court has considered the

factors contained in 18 U.S.C. § 3553(a). In defining the

extent of that review, we recently stated,

[O]ur role is not that of the sentencing court. “The

question is not how we ourselves would have resolved

the factors identified as relevant by section 3553(a).”

Furthermore, given the presumptive reasonableness of

sentences within the Guidelines range, we have observed that it will be the rare sentence within the

Guidelines range that “stands out as unreasonable.”

United States v. Newsom, No. 03-3366, *4 (7th Cir. Nov. 2,

2005) (quoting United States v. Williams, No. 03-4091, *5

(7th Cir. Oct. 6, 2005)). After giving adequate consideration

to the § 3553(a) factors, the district court reinstated Welch’s

previous sentence, a sentence within the Guidelines range.

While more explanation is always better than less, no

evidence has been presented to indicate that Welch’s

sentence was the result of plain error.

The last inquiry for this Court is whether the defendant’s

sentence is reasonable. See Paladino, 401 F.3d at 484 (if the

district court indicates that it would reimpose the original

sentence, we will affirm the sentence against a plain-error

challenge provided that the sentence is reasonable). Any

sentence that is properly calculated under the Guidelines is

entitled to a rebuttable presumption of reasonableness.

United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir.

2005). A defendant can rebut this presumption only by

demonstrating that her sentence is unreasonable when

measured against the factors set forth in § 3553(a). Id.

Welch has not met this burden. 

The sentencing guideline range applied by the district

court provided for a sentence of 140-175 months. The
6 No. 03-3638

district court imposed a sentence near the center of that

range, 160 months. This sentence was justified by the

district court’s reiteration of the “egregious nature” of

Welch’s criminal record, the district court’s finding that

Welch would likely commit future crimes, the need to hold

Welch accountable, and the need to protect the community.

The record provides no reason to believe the sentence

imposed by the district court was unreasonable.

The district court properly limited its review during

Paladino remand to the record at the time of sentencing.

See Paladino, 401 F.3d at 484. We agree with the district

court that while Welch’s efforts post-sentencing to prepare

for life outside prison are commendable, such actions are

not appropriate for consideration during a Paladino

remand. United States v. Re, 419 F.3d 582, 584 (7th Cir.

2005) (“Post-sentencing events or conduct simply are not

relevant to th[e Paladino] inquiry.”). 

Because the district court would have imposed the same

sentence post-Booker and because that sentence is reasonable, we conclude that Welch’s sentence was not the result

of plain error. Accordingly, we AFFIRM the judgment of the

district court. 

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—11-21-05